During arbitration, the testimony of a witness is the most crucial of all, and you may find that you have to declare someone a “hostile witness”.
A hostile witness is described as a witness who acts against the party for whom they are testifying, in a manner which is inconsistent with previous statements.
For example, a supervisor may report to his employer that an employee is refusing to comply with his instruction and threatened that if he reports the conduct to his employer, he will ‘sort him out’ after work. However, the supervisor, when testifying during the arbitration, denies that such a threat was made.
When faced with such a witness, a party may make application to the arbitrating Commissioner that the witness is declared hostile. The reason for declaring a witness as being hostile is that it provides an opportunity for the Representative to cross-examine their own (hostile) witness by asking leading questions.
In Matsunyane v Zeneth Telecommunications Specialists CC MEIBC MEGA 7132 (2005), the Commissioner made the following statement: “In declaring someone a hostile witness, you are in effect allowing the Representative of the party for whom the witness is testifying to cross-examine the witness as if he is now a witness for the opposing party”.
It is important to note that a witness that is merely unfavourable or provides unsatisfactory evidence does, however, not render that witness as being hostile. An important factor that must also be considered when determining whether a witness is hostile is the attitude of the said witness.
The declaration of a witness as hostile is a recognised exception to the rule that a party may not discredit or cross-examine their own witness.
A request for a witness to be declared hostile must be made during evidence-in-chief. Caution must be taken before making application for a witness to be declared hostile, as it may afford the hostile witness a further opportunity to give unfavourable evidence.
Hostile witnesses should not be confused with poorly prepared witnesses, and witness preparation should be thorough and methodical to avoid an unfavourable testimony.
Article by: Anesta Kruger
Dispute Resolution Official – KZN